Looking Forward After the FAA’s Drone Registration Regulation

On December 14, 2015, the Federal Aviation Administration issued a significant regulation that requires all owners of small unmanned aircraft systems – between 0.55 and 55 pounds – to register with the agency.

News outlets have good summaries of the rules, so we only recap them here. An individual who owns a drone before December 21, 2015, will be required to register with the FAA by February 19, 2016. Anyone who obtains a drone on or after December 21, 2015, must register with the FAA before operating the device. The agency’s streamlined online registration process will launch on December 21, 2015. Registration will require a $5 fee, although the FAA is waiving the fee for the first 30 days. Registrations expire after three years but can be renewed (also $5). Each drone will be required to display a unique registration number, and the operator will be required to possess the registration certificate when operating the drone.

Looking beyond the specifics of the new rules, we noted several interesting aspects of the FAA’s action this week. These developments may have more significant and longer term implications for the agency’s regulation of drones:

The FAA issued the regulations by an administrative procedure known as an “interim final rule.” This procedure permits an agency to make new regulations effective immediately, even as the agency gathers public comments. Usually, the FAA adopts regulations by more traditional procedures, where the agency considers the public comments before making the regulations legally binding. Many commentators have noted that the agency appears to have wanted the rules in place before Christmas, and that is indeed likely. We reviewed past FAA regulations, and it appears that the agency has used the interim final rule procedure only a handful of times, and mostly on issues related to safety and security. We believe this is a strong indication that the agency is finally prepared to move more quickly and aggressively on drones, after years of being significantly behind the developments in the industry and among users.

Similarly, the FAA released an impressive array of materials associated with the new regulation. The order itself is some 200 pages and includes extensive commentary in response to comments submitted in an earlier regulatory proceeding that touched on the question of drone registration. The agency also released a detailed Q&A that contained useful information that was not otherwise addressed in the regulation itself. The agency even created a chart of popular drones, with full color pictures, that included information on the drone’s weight and specified whether it was covered by the new rule.

The new regulation strongly supports our view the FAA will continue to apply traditional aircraft regulations to drones whenever possible. The entire order is premised on the position that federal law “requires aircraft to be registered prior to operations,” and it makes no distinction in that regard between full size aircraft, drones, or even paper airplanes. Indeed, regarding paper airplanes, the FAA stated that it was only an “exercise [of] enforcement discretion” that kept paper airplane from facing a registration requirement!

The new regulation repeatedly emphasized the agency’s interest in individual accountability and responsibility of drone operators. It is clear that the registration and aircraft marking requirements were driven by the agency’s desire to be able to hold operators accountable for future accidents or incidents involving drones. The language of the regulation was unambiguous: “Aircraft registration is necessary to ensure personal accountability among all users.” Registration allows the agency “to hold [users] accountable for noncompliance with safe operating requirements.” The agency’s approach here is similar to other actions it has taken, such as proposing a two-year license for drone operators and consistently limiting section 333 authorizations to operations by a licensed pilot.

The agency performed some impressive legal sleight of hand to codify a new definition of “model aircraft” that has the effect of sweeping into the regulations a large class of devices that were previously untouched by the FAA. In the 2012 FAA Modernization and Reform Act, Congress prohibited the agency from issuing any rule or regulation of “model aircraft.” For the purposes of that section only, Congress defined model aircraft as unmanned aircraft “flown for hobby or recreational purposes.” In the regulation issued this week, the FAA converted that definition into a generally applicable regulatory classification designed to distinguish between hobbyists and nonhobbyists. As a result, the FAA imposed the registration and marking requirements on all small unmanned aircraft, including traditional scale model aircraft flown by hobbyists, arguably the exact inverse of Congress’s intent in the statute.

Finally, the FAA’s past sweeping statements about its authority over airspace have led to speculation that the agency was claiming jurisdiction over indoor airspace. Although we previously received informal guidance from FAA enforcement personnel that indoor drone operations were outside of the agency’s authority, the FAA had not previously issued official guidance in that regard. In the new regulation, however, the FAA finally put the issue to rest. It stated that the regulation applies only to “aircraft operated in the [National Airspace System], thus outdoors.” The Q&A document was even more direct, stating “the FAA does not regulate indoor UAS use.”